Summary
In Caplan v. Kent, 366 Pa. 87, 76 A.2d 764 (1950), it was held that a sheriff's return, regular on its face, could not be attacked collaterally in a bill in equity to quiet title.
Summary of this case from Roberts v. GibsonOpinion
October 9, 1950.
November 27, 1950.
Practice — Actions — Quieting title — Judgments — Validity — Tax title — Title derived from sheriff's sale — Regularity of proceedings — Collateral attack.
In an action to quiet title and obtain possession of real estate, in which it appeared that defendant in possession was the heir of the deceased registered owner, that judgment was entered in a scire facias proceeding upon a tax lien, and thereafter the property was sold by the sheriff and was subsequently conveyed to plaintiffs and that defendant challenged the validity of the scire facias proceedings, it was Held that (1) returns regular on their face in the scire facias proceeding could not be collaterally attacked in this suit, and (2) the pendency of direct proceedings attacking the prior proceedings did not deprive the plaintiffs of the right to immediate possession.
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 162, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, July T., 1949, No. 1721, in case of Cyril Caplan et ux. v. Eleanor A. Kent et al. Judgment affirmed.
Bill in equity to quiet title.
The facts are stated in the opinion by ADAMS, J., of the court below, MARSHALL, O'TOOLE and ADAMS, JJ., as follows:
The plaintiffs filed a motion for judgment on the pleadings in an action to quiet title (R. C. P. 10611066). The action was brought to secure possession of five adjoining lots and two houses located thereon. The premises are fully described in the Complaint and may be here referred to as Lots 224 to 228, inclusive, in the O'Hara Plan of Lots. We may regard the whole as consisting of two parts, namely, Lots 227 and 228, with a house located thereon, and Lots 224 to 226, inclusive, with a house located thereon. The pleadings consist of the Complaint, Answer and New Matter, and Reply to New Matter. Judgment for plaintiffs for possession of Lots 224 to 226, inclusive, and the house located thereon, will be entered. This is required by the undenied facts pleaded by plaintiffs and the facts admitted in the pleading of defendant, Eleanor A. Kent.
During the year 1935, Eleanor Lyons Kent was the owner of property which is the subject of this litigation. The County of Allegheny properly assessed and levied taxes for the year 1935 against the property. On July 6, 1938, the County entered a lien for its 1935 taxes, which lien was legally revived in 1943 and 1947. In proceedings in this court at No. 1513 October Term, 1946, a writ of scire facias was issued upon the lien at the suit of the County against Eleanor Lyons Kent, the then registered owner of the property, and judgment was duly entered thereon. A writ of levari facias was then issued at No. 415 April Term, 1947, in this court at the suit of the County against Eleanor Lyons Kent, the then registered owner of the property, and as a result, the property was exposed to public sale by the Sheriff of Allegheny County. After proceedings in this court at No. 1699 July Term, 1947, to permit the selling of the property to the highest bidder free of liens and other charges, the property was sold by the Sheriff to the County of Allegheny, the City of Pittsburgh and the School District of the City of Pittsburgh, and a deed therefor was delivered to the municipalities by the Sheriff and recorded in Deed Book Volume 2772, page 8. By deed dated January 11, 1949, and recorded March 4, 1949, in Deed Book Volume 3044, page 203, the above municipalities conveyed the property to Cyril Caplan, and by deed dated March 30, 1949, and recorded in Deed Book Volume 3030, page 695, Cyril Caplan conveyed the property to Cyril Caplan and Diana Caplan, his wife, the plaintiffs herein.
Eleanor Lyons Kent, the defendant in the above proceedings by the County of Allegheny and the then registered owner of the property, died October 6, 1945. She remained the registered owner of the property from the time of her death until after the Sheriff's sale to the municipalities. She left to survive her as her only heir at law Eleanor A. Kent, one of the defendants herein. After plaintiffs' purchase of the property, the defendant, Eleanor A. Kent, refused to surrender possession thereof to them, and still retains possession of that part of the property known as lots Nos. 224, 225 and 226 in the O'Hara Plan, on which is erected the house known as 822 South Negley Avenue, Pittsburgh, Pennsylvania.
The defendant, Eleanor A. Kent, would defeat plaintiffs' right to possession by attacking collaterally (New Matter) the scire facias proceeding to reduce the tax liens to judgment and the proceedings to sell the property free of liens. As to the former proceeding it is averred that the agent of the County of Allegheny made a fraudulent return that he had made a personal investigation and could not determine whether the defendant was in the military service. It is not denied that the return is regular on its face. Defendant, Eleanor A. Kent, admits that defendant was not in the military service. This averment could not, therefore, in this proceeding defeat plaintiffs' title and right to possession.
Defendant, Eleanor A. Kent, attacks the proceeding to sell the property free of liens by averring that the Sheriff did not, as his return shows, make diligent search and inquiry to locate the defendant before giving notice by publication. It is also averred that the agent of the County, in that proceeding, made a fraudulent affidavit that he had made personal investigation and he could not determine whether the defendant was in military service. The Sheriff's return is regular on its face and cannot be attacked in this proceeding. The averment concerning the affidavit of the County's agent is unavailing for the reasons set out above.
It was stated at the oral argument and in the brief filed by defendant that there are pending in this court direct proceedings attacking the scire facias proceeding and the proceeding to sell the property free of liens, which are collaterally attacked by defendant, Eleanor A. Kent, in this case. Until the issues are there properly determined, plaintiffs are entitled to possession of the property. ( Hoff v. Allegheny County, 343 Pa. 569; McMahon, Receiver v. Taylor, 27 Pa. D. C. 174; Meskunas v. Puskunigis, 33 Pa. D. C. 124.)
Judgment for the plaintiffs for possession of lots Nos. 224 to 226, inclusive, and the house erected thereon, will be entered.
Defendant appealed.
William S. Doty, with him Horton Smith, for appellant.
Richard B. Tucker, Jr. with him Patterson, Crawford, Arensberg Dunn, for appellees.
The judgment of the court below is affirmed on the opinion of Judge ADAMS. Costs of this appeal to be paid by the appellant.